United States District Court, D. New Mexico
ORDER ON PLAINTIFF TONYA SUTTON'S REQUEST FOR
Kelly, Jr. United States Circuit Judge
MATTER is before the court on Plaintiff Tonya Sutton's
request for default judgment made at the default hearing on
October 3, 2019. Upon consideration thereof, the court finds
the request is not well taken and should be denied.
Joseph Wayne Rigsby, Sr. has not made an appearance in this
lawsuit. When a defendant fails to plead or defend, a
plaintiff may seek a default judgment under Fed.R.Civ.P. 55.
The clerk entered Mr. Rigsby's default on August 22,
2019. ECF No. 55. Following the clerk's entry, the court
set the matter down for a hearing.
the court may enter a default judgment it must satisfy itself
that it has personal jurisdiction over the defendant and
there is an adequate basis in the pleadings to support the
judgment. See Bixler v. Foster, 596 F.3d 751, 761
(10th Cir. 2010). “In reviewing a default judgment,
this court takes ‘the well-pleaded factual
allegations' in the complaint ‘as true.'”
DIRECTV, Inc. v. Hoa Huynh, 503 F.3d 847, 854 (9th
Cir. 2007) (quoting Cripps v. Life Ins. Co. of N.
Am., 980 F.2d 1261, 1267 (9th Cir. 1992)). However, a
“defendant is not held to admit facts that are not
well-pleaded or to admit conclusions of law.”
Nishimatsu Constr. Co. v. Houston Nat'l Bank,
515 F.2d 1200, 1206 (5th Cir. 1975). And district courts have
discretion to decline to award default judgment when there
are serious doubts as to the merits of the plaintiff's
substantive claim. Eitel v. McCool, 782 F.2d 1470,
1471 (9th Cir. 1986). Accordingly, the court makes the
following findings of fact and conclusions of law:
court has jurisdiction over the parties to this action. Mr.
Rigsby is a New Mexico citizen and was served with a copy of
the summons and complaint. See ECF No. 7.
Rigsby failed to answer and a certificate of default was
entered. See ECF No. 55.
Sutton acknowledged that the claims asserted in this lawsuit
arose out of a divorce action filed in the Second Judicial
District, Bernalillo County, New Mexico, captioned DM
2009-345, Joseph Wayne Rigsby v. Tony Evelyn Rigsby. She
relies upon an interlocutory order of protection of March 26,
2009 (later extended to expire on January 5, 2015) which
froze the Heartland 401(k) and Heartland Residual Portfolio
“pending final orders of the divorce court.” ECF
No. 37-4 at 3, 10; ECF No. 37-5.
Final Decree of Dissolution of Marriage was filed May 16,
2011. ECF No. 29-1, Ex. A.
state court found that the Heartland Residual Portfolio
Account payments come on the fifteenth day of the month, and
that the account was worth $48, 413.00 at the time of the
trial. ECF No. 29-1 at 5, ¶¶ 47, 52. In the final
order of the divorce court, Ms. Sutton was awarded half the
total amount, $24, 206.00, ECF No. 29-1 at 10, ¶ P, and
100% of the Heartland 401(k) account opened by Ms. Rigsby
during the marriage. ECF No. 29-1 at 6, ¶ 59.
divorce action was finalized on May 16, 2011, and no appeal
was initiated. ECF No. 29-1 at 1.
her amended complaint, Ms. Sutton claims that the Heartland
Residual Portfolio account was worth $300, 000, and that Mr.
Rigsby converted it and conspired with defendant Heartland
Payment Systems LLC, making both defendants jointly and
severally liable. ECF No. 1-1 at 24.
hearing on default was held on October 3, 2019.
the hearing, Ms. Sutton's counsel admitted that Ms.
Sutton was aware of the Heartland Residual Portfolio account
at the time of the divorce proceedings, and that Mr. Rigsby
was included in this complaint on the basis of joint
liability with defendant Heartland Payment Systems. Counsel
further admitted that the order of protection provision that
froze the Heartland Residual Portfolio account and Heartland
401(k) was only in effect until the final decree of the
divorce court (May 16, 2011).
Sutton was allowed to furnish the court a revised calculation
of damages; the court has not received such a calculation,
but now deems it unnecessary after considering the
relationship between this case, the ...